Explainer: Increased Police powers and COVID-19
Summary
In response to the COVID-19 public health emergency, most states across Australia declared a state of emergency and brought in new laws imposing severe restrictions on civil liberties and an increase in policing powers.
In Victoria, the declaration of a state of emergency on 16 March 2020 (under the Public Health and Wellbeing Act) granted police powers to give directions regarding the movement of people, to enter any premises and to detain any person as considered necessary.
On 2 August 2020, Victoria went a step further, declaring a state of disaster (under the Emergency Management Act), which generally deals with emergencies such as natural disasters, acts of terrorism and can be used to deal with “a plague or an epidemic”.
Given that police have been granted extraordinarily wide powers, it is important that there is:
transparency and accountability in the exercise of increased police powers;
independent investigation of complaints of police misconduct during the pandemic; and
an end date for the increased police powers, so that they don’t become the new normal.
This must all be accompanied by the Victorian Government engaging in a widespread public education campaign, with increased efforts to educate and provide accessible information to all communities. Relying solely on policing and enforcement measures risks exacerbating inequality and poverty. Likewise, when it comes to interacting with marginalised communities, rather than automatically fining people, police should first be helping them to stay safe and comply with the rules.
What is a state of disaster?
In order to declare a state of disaster, the Premier must be satisfied there is an emergency that “constitutes or is likely to constitute a significant and widespread danger to life or property in Victoria”. Following the declaration of a state of disaster, the Premier must report on the state of disaster and the powers exercised pursuant to it to Parliament as soon as practicable.
While a state of emergency grants powers to the Victorian Chief Health Officer to do “whatever is necessary to contain the spread of the virus and reduce the risk to the health of Victorians”, the state of disaster grants powers directly to the Minister for Police to direct a range of activities considered “necessary or desirable for responding to the disaster”.
These are very extensive powers, designed to be exercised by trained and qualified public health professionals for the purpose of managing and preventing public health risks - not for criminal law enforcement - and it is currently unclear the extent to which they will be used.
What police powers are increased during a state of disaster?
In addition to the previous, increased powers granted to police earlier in the year when a state of emergency was declared, the declaration of a state of disaster goes further and allows the Minister for Police to:
take possession or make use of any person's property as considered necessary;
control a person's entry into and from the disaster area; and
compel the evacuation of any person from the disaster area.
The declaration of a state of disaster grants the Minister for Police wide-reaching powers to actively regulate government activities and resources. A state of disaster allows the Minister to direct and co-ordinate the activities of all government agencies, including the allocation of resources, as necessary or desirable for responding to the disaster. This includes the power to direct any government agency to perform any act. As the power is drafted in broad terms, this could potentially allow the Minister for Police to re-direct and employ any police resources it sees fit.
The declaration of a state of disaster also allows the Minister for Police to suspend any law that would inhibit the response to or recovery from the disaster. The Minister may only use this power in relation to laws which prescribe the functions, duties, powers and responsibilities of a government agency. This still means that if, for example, the Minister forms the view that the operation of a law inhibits the response to the disaster, the operation of that law could be suspended.
Has a state of disaster been declared before?
The power to declare a state of disaster has existed in Victoria since the Emergency Management Act became law in 1986. A state of disaster was declared for the first time in Victoria earlier this year during the bushfire crisis. The declaration was limited to specific areas that were in danger from the spread of bushfires in eastern Victoria. It was initially declared for a period of 7 days, and this was later extended for a short period. This time, however, the state of disaster has been made in relation to the entire state of Victoria, and for the maximum period of one month.
Why are increased police powers concerning?
Victoria Police have issued more COVID-19 fines than any other state in Australia. While international human rights law recognises that certain human rights may be suspended in a time of public emergency, this should not result in discriminatory practices or overly punitive responses that further target oppressed groups.
A Parliamentary Inquiry into the Victorian Government’s response to COVID-19 has shown that Victoria's three most disadvantaged communities have been disproportionately impacted by police enforcement measures, receiving 10 percent of COVID-19 fines. This is in contrast to the state’s three most advantaged local government areas that received just two per cent of total infringements. This inequality raises serious concerns about whether all communities are being policed fairly and equally, or if there has been differential treatment.
This is in keeping with history, which shows that marginalised groups are disproportionately punished through an expansion of policing powers. In particular, people living with a disability, women and children escaping family violence and those experiencing homelessness may be hardest hit. In addition, increased powers - and broad police discretion - open the way for racialised and discriminatory policing, too often experienced by Aboriginal and Torres Strait Islander people and People of Colour.
Concerns have also been raised about the treatment of children and young people, with many issued with fines that they have no capacity to pay. Children do not have the same capacity as adults to navigate the new and different rules which apply during this state of disaster. The police must recognise that children will often not be flagrantly flouting the law, but may be managing risks to their own or others’ safety. Instead of fining children and young people, police should be helping them stay safe and comply with the rules.
How should policing look in the pandemic?
The Victorian Government must engage in a widespread public education and engagement campaign with increased efforts to provide information across the whole community in multiple formats, particularly information regarding the new laws and what is expected of people and the consequences for non-compliance.
Members of marginalised communities should not be targeted by police and fined, but rather empowered to assist with efforts to curb COVID-19. Police should consult with, and be guided by, local community groups and representatives.
There must be transparency and accountability in the exercise of increased police powers. There should be a requirement that police collect data and report on the use of any increased powers pursuant to state of emergency or state of disaster measures. This should also be provided to an independent review body for analysis and scrutiny and subsequently publicly published.
Police must be directed and provided with clear guidance to fairly assess exemptions to restrictions on the basis of ‘providing care’, ‘for compassionate reasons’ or to ‘seek medical treatment’ or ‘risk of violence’.
Complaints of police misconduct during COVID-19 should be investigated by an independent watchdog, like IBAC. Allegations of wrongdoing by police officers during the pandemic should not be investigated by other police officers.
In no circumstances should children – aged under 18 – be fined or prosecuted for non-compliance with public health directions. Police need to help educate children about public health directions. Children do not have the capacity to pay fines or effectively address them during a state of disaster, and this puts them at risk of becoming entangled in the criminal legal system.
The Victorian Government must withdraw increased police powers as soon as the states of emergency and disaster end. There is a risk that increased police powers could become the new normal. Any proposed, permanent increased powers must be subject to careful and proper scrutiny after the pandemic.
If people have experienced or witnessed problematic policing related to COVID-19, they can report it to: covidpolicing.org.au.
If people have been treated unfairly by police, or have received a COVID-19 fine, they can contact Fitzroy Legal Service on 0434 136 501 for free legal advice. Aboriginal and Torres Strait Islander people can contact VALS on 1800 064 865.
Resources for people affected by COVID-19 are also available on the Justice Connect website.
This explainer is not legal advice
The contents of this publication do not constitute legal advice, are not intended to be a substitute for legal advice and should not be relied upon as legal advice. You should seek legal advice or other professional advice in relation to any particular matters you or your organisation may have.